Replies to points of dispute and Provisional Assessment
You are faced with points of dispute to your bill which totals less than £75,000. The bill and notice of commencement were served on the paying party post 1/4/13. As we know the bill will be provisionally assessed. Despite the bill being comprehensive, replies are the only remaining opportunity to put your client’s case to the costs judge short of a risky appeal and oral hearing (20% rule).
PD 12.1 AND 12.2 attaching to CPR 47.13 restricts what can be included in your replies to:
‘points of principle and concessions only. The reply must not contain general denials, specific denials or standard form responses’ (thereby implying that the reply can contain something)
It goes on to say ‘Whenever practicable, the reply must be set out in the form of Precedent G’.
When the CPD was first revealed there was much comment (mainly by defendants and paying parties) on the definition of ‘points of principle’. Correctly, in my view, this seemed to conclude that a point of principle is ‘one which requires a decision before the individual items in the bill are addressed’ (as specified in CPD 8.2(a)).
At the time there did not appear to be any substantive comment on ‘general denials, specific denials or standard form responses’ save for opinions that the paying party could only make a simple concession.
Surely these descriptions should be open to interpretation as well and the receiving party (unless it so wishes) should not be restricted to a simple statement of concession.
If, for example, a partial concession is accompanied by a concise reply to a point of dispute which does not constitute a general denial (‘the bill is not excessive’), a specific denial (time considering disclosure is not excessive) or a standard form response (claim maintained) then it should comply with the rules. The concession will also hold a lot more weight in these circumstances.
If this is the case then a concise description of the reasons for the amount of time claimed in the bill is appropriate and it would appear that Precedent G provides for this option. It seems only right that the replies should provide the receiving party with an opportunity to put its case forwards and a concise reply will surely assist the costs judge in reaching a decision far more quickly.
The caveat is that there is a £1,500 limit on costs of provisional assessment. The cost of prolix replies will, therefore, not be recoverable. There is also the possibility that an application could be made to strike out the replies as not conforming with the rules (although it remains unclear what the sanction would be).
We are now nearly six months post Jackson and so far there appears to have been little feedback with regard to the Court’s approach to replies and any resulting applications. Any feedback should be considered with interest, particularly in light of the Court’s attitude to satellite litigation.
John Moss, Costs Lawyer and Partner